THE SOCIETY OF JESUS OF NEW ENGLAND & another [Note 1] vs. BOSTON LANDMARKS COMMISSION.

LYNCH, J. The plaintiffs, Society of Jesus of New England (Jesuits), bring this petition pursuant to 42 U.S.C. Section 1988 (1988), for an award of appellate attorneys' fees against the defendant, Boston Landmarks Commission (commission). In the underlying case, Society of Jesus of New England v. Boston Landmarks Comm'n, 409 Mass. 38 (1990), the Jesuits successfully defended the Superior Court's grant of summary judgment in their favor. At issue is whether the petition for appellate attorneys' fees is untimely and whether the claimed fees of $142,760.88 are excessive. We conclude that the petition was timely and that the Jesuits are entitled to attorneys' fees and disbursements in the amount of $63,959.88.

We begin by summarizing the following pertinent facts and procedural history. On May 12, 1987, the commission designated the interior of the Immaculate Conception Church as a landmark. Thereafter the Jesuits brought an action challenging that designation on Federal and State constitutional grounds. They also filed two other actions challenging subsequent acts of the commission on the same grounds. In all three complaints the Jesuits requested attorneys' fees under 42 U.S.C. Section 1988. The cases were consolidated in the Superior Court. On November 2, 1989, a Superior Court judge held that the designation violated the free exercise clause of the First Amendment to the United States Constitution, and, consequently, granted summary judgment in favor of the Jesuits. We granted the commission's application for direct appellate review, and on December 31, 1990, affirmed the judgment on the ground that the designation violated art. 2 of the Declaration of Rights of the Massachusetts Constitution. Society of Jesus of New England v. Boston Landmarks Comm'n, supra at 39. In their appellate

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brief, the Jesuits requested an award for appellate attorneys' fees in conformity with Yorke Management v. Castro, 406 Mass. 17, 20 (1989).

After the expiration of the time within which the commission could, as of right, file a petition for a writ of certiorari with the United States Supreme Court, [Note 2] the Jesuits filed their petition with this court for appellate attorneys' fees. The petition seeks attorneys' fees in the amount of $131,335, plus disbursements of $11,425.88, for a total of $142,760.88. [Note 3]

1. Timeliness. Although the Jesuits' petition seeks fees under a Federal statute, 42 U.S.C. Section 1988, [Note 4] the question of the timeliness of the petition is governed by the Massachusetts Rules of Civil Procedure. Draper v. Town Clerk of Greenfield, 384 Mass. 444, 449 (1981), cert. denied, 456 U.S. 947 (1982). There is, however, no specific Massachusetts procedural rule regarding the timely filing of a petition for attorneys' fees. [Note 5] The determination of timeliness is, therefore,

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within the discretion of this court. See White v. New Hampshire Dep't of Employment Sec., 679 F.2d 283, 285 (1st Cir. 1982). At the outset we determine whether we should exercise that discretion to bar the Jesuits' fee petition. [Note 6] See Gary v. Spires, 634 F.2d 772, 773 (4th Cir. 1980).

The commission argues that the filing of the fee petition after expiration of the period during which a petition for a writ of certiorari may be filed creates an equitable bar to the fee petition. To support its claim that the fee petition should be filed within the period for filing a petition for a writ of certiorari, the commission relies on Gary v. Spires, supra, and Gibbs v. Gotfredson Chrysler Plymouth, 708 F. Supp. 270 (D. Neb. 1989). In both cases trial judges had entered judgments in favor of the defendants who later moved for attorneys' fees. In Gary v. Spires, the court rejected as inequitable the defendants' demand for Section 1988 fees because the defendants made their demand two months after the appeal period had expired, having never raised the issue earlier. In Gibbs v. Gotfredson Chrysler Plymouth, supra, the court denied the defendants' motion for Section 1988 fees because the defendants filed their motion on the last day of the appeal period and the court found such a filing to carry with it a strong indication of unfair prejudice. [Note 7] Id. at 272.

Neither of these decisions, nor any of which we are aware, would bar a claim for attorneys' fees in this situation. The decisions relied on by the commission involve instances where no notice of the defendants' claims for fees was given until after judgment. That element is lacking here. In this case, in all three complaints the Jesuits requested attorneys' fees

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under Section 1988. [Note 8] Furthermore, in their appellate brief before this court, they requested appellate attorneys' fees. In our view, this constitutes sufficient advance notice to the commission that the Jesuits intended to petition this court for appellate attorneys' fees. Therefore, on these facts, the commission's claim of unfair surprise and prejudice is without merit. Since there was a claim for attorneys' fees at the outset of the litigation and at the time of appeal, even under the most restrictive interpretation of timeliness, the fee claim would not be time barred because the judgment did not resolve the issue of fees and, therefore, anticipated further litigation on the issue. Draper v. Town Clerk of Greenfield, supra at 450-452.

2. Discretion to award fees. We recently confirmed that under Section 1988 "a prevailing party should recover attorneys' fees absent special circumstances rendering such an award unjust." Globe Newspaper Co. v. Commissioner of Revenue, 410 Mass. 188, 197 (1991), citing Blanchard v. Bergeron, 489 U.S. 87, 89 (1989). There are no special circumstances in this case that would render an award unjust. That the burden of payment falls on the taxpayers is not a special circumstance warranting denial of the Jesuits' claim for attorneys' fees. Globe Newspaper Co. v. Commissioner of Revenue, supra at 197. Neither is the prevailing party's ability to pay attorneys' fees a special circumstance prohibiting an award under Section 1988. International Soc'y for Krishna Consciousness, Inc. v. Collins, 609 F.2d 151 (5th Cir. 1980).

3. The amount of fees. This court has adopted the guidelines set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), [Note 9] for calculating Section 1988 fees.

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Stratos v. Department of Pub. Welfare, 387 Mass. 312, 321-322 (1982). There we stated that "fair market rates for time reasonably spent should be the basic measure of reasonable fees, and should govern unless there are special reasons to depart from them." Id. at 322. [Note 10] See also Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (the product of "reasonable hours times a reasonable rate" normally provides a "reasonable" attorneys' fee within the meaning of the statute; however, other considerations may lead a court to adjust the fees upward or downward).

The Jesuits have the burden of showing that the claimed rate and number of hours are reasonable. See Blum v. Stenson, 465 U.S. 886, 897 (1984). [Note 11] To support their fee claim of $142,760.88, the Jesuits indicate that three lawyers spent six hundred thirty-four and one quarter hours on the appeal. The Jesuits contend that the hours billed are reasonable because of the difficulty of the case and the results achieved. By contrast, the commission claims that the hours are excessive

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and unreasonable in relation to the actual work performed. We agree.

As the commission has urged, we have compared the Jesuits' summary judgment brief and summary judgment reply memorandum with their appellate brief. On careful examination we find that the Jesuits' appellate brief was largely a duplicated, rearranged, and somewhat expanded version of their summary judgment brief. Undoubtedly, the attorneys spent time rethinking the arguments and editing and reorganizing the summary judgment brief into an appellate brief. But the time spent is unreasonable in relation to the final product.

The appellate brief is seventy pages long. Of the seventy pages, fifty are either verbatim copies or verbatim copies with minor changes of the summary judgment brief. Of the twenty new pages of the appellate brief, four pages are devoted to their successful arguments under art. 2. Yet the time billing summary indicates that one attorney spent approximately one hundred fifty hours drafting and preparing the appellate brief and still another spent three hundred hours researching, drafting, and preparing the same brief. In the framework of a Section 1988 fee, we find unreasonable four hundred fifty hours spent producing twenty new pages.

The billed hours also reflect a duplication of effort among the attorneys and time spent that was unessential. See Johnson v. Georgia Highway Express, Inc., supra at 717. For example, the time records show that three attorneys respectively spent fifty-six hours, twenty-four and one quarter hours, and four hours for a total of eighty-four and one quarter hours preparing for the twenty-five minute oral argument before this court. The records also show time billed for the same three attorneys' attendance at oral argument. We find this time duplicative and unnecessary. Although there may be some benefit to having three lawyers prepare for and attend oral argument, it is difficult to justify what might be regarded by some as overkill when assessing a Section 1988 fee against an adversary. Ricci v. Key Bancshares of Me., Inc., 111 F.R.D. 369, 378-379 (D. Me. 1986). See, e.g., Grendel's

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Den, Inc. v. Larkin, 749 F.2d 945, 952-953 (1st Cir. 1984) (considerably reducing claim of hours finding no justification for presence of "two top echelon attorneys" at each proceeding). We conclude that it is unreasonable to assess as comprising a Section 1988 fee the entire four hundred fifty hours devoted to produce approximately twenty new pages, the entire eighty-four and one quarter hours spent to prepare for a twenty-five minute oral argument, and all the hours of three attorneys to attend oral argument. Accordingly, on the record before us, we award the Jesuits attorneys' fees and disbursements of $53,959.88, an amount we adjudge to reflect reasonable hours expended on their appellate litigation. [Note 12]

Finally, the Jesuits have requested a $16,000 fee for time spent to recover their appellate fees under the authority of Stratos v. Department of Pub. Welfare, 387 Mass. 312, 323 (1982). We award appellate fees in the amount of $10,000 under the principles discussed above.

We conclude that the petition was timely and that the Jesuits are entitled to attorneys' fees and disbursements in the amount of $63,959.88.

So ordered.